Henry v. Henry , 1976 N.C. App. LEXIS 2406 ( 1976 )

VAUGHN, Judge.

The accident, involving residents of Pennsylvania, occurred on an interstate highway in North Carolina. In cases involving intra-family immunity, our Supreme Court has consistently held that it would apply the law of the state where the wrong took place instead of the law of the state of the parties’ residence. Bogen v. Bogen, 219 N.C. 51, 12 S.E. 2d 649; Shaw v. Lee, 258 N.C. 609, 129 S.E. 2d 288; Petrea v. Tank Lines, 264 N.C. 230, 141 S.E. 2d 278.

Defendant’s counsel persuasively urges that the courts of this State re-examine the position previously taken and hold that the law of the domicile and not the place of the wrong should apply in determining whether a wife can sue her husband in tort. No good purpose could be served here by a review of the well reasoned cases and other writings that support the view urged by defendant. If the question had not previously been resolved by the Supreme Court, we would not hesitate to adopt the view urged by defendant to the extent that plaintiff could not maintain the present action. To so hold would not, we believe, be “to voyage into such an uncharted sea, leaving behind well established conflicts of laws rules.” Shaw v. Lee, supra. Incapacity to sue because of marital status is a question of family law and not of tort. This State can recognize the consequences of the family status given the parties in the state of their residence without any encroachment on the right of this State to regulate the conduct of nonresidents while they are in this State.

Nevertheless, as it should be, the wisdom of determining whether or when the effect of a prior decision of the Supreme Court shall be modified is a matter for exclusive determination by that Court. As the Supreme Court of North Carolina recently said as it quoted with approval from an Iowa case:

“ ‘If trial courts venture into the business of predicting when this court will reverse its previous holdings . . . they are engaged in a high-risk adventure which we strongly recommend against.’ ” Smith v. State, 289 N.C. 303, 222 S.E. 2d 412.

For these reasons the order from which defendant is affirmed. appealed

Affirmed.

Judge Martin concurs. Chief Judge Brock dissents.